“But you could.”
“The first twenty-four hours will tell the tale.”
At least it was something.
“Thank you.”
She patted my arm and left the room, leaving the deputy standing in the doorway. I walked over to the door and started to close it.
“You can’t close that,” the deputy said.
“Sure I can. This is an attorney-client conference.”
“He’s not even conscious.”
“Right now he isn’t, but it doesn’t matter. He’s my client and we are entitled by the U.S. Constitution to private consultation. You want to stand in front of a judge tomorrow and explain why you failed to provide this man — who is now the victim of a vicious crime — his inalienable right to confer with his attorney?”
In the Sheriff’s Department, all academy graduates are transferred directly into the detention division for their first two years on the job. The deputy in front of me looked like he was twenty-four at the most and maybe even still on probation. I knew he would back down and he did.
“All right,” he said. “You have ten minutes. After that, you’re out of here. Doctor’s orders.”
“Fine.”
“I’ll be standing right out here.”
“Good. I feel safer already.”
I closed the door.
40
Judge Leggoe brought the attorneys into chambers first thing the next morning. Lankford was invited in with Forsythe so he could brief the judge on what was known in regard to the stabbing of Andre La Cosse. Lankford, of course, couched it in terms of the kind of random violence that happens often between incarcerated men.
“Most likely it will be determined to be a hate crime,” he said. “Mr. La Cosse is a homosexual. The suspect is already convicted of one murder and is on trial for another.”
The judge nodded thoughtfully. I could not counter Lankford’s insinuations because so far Cisco had not come up with any link between Patrick Sewell — La Cosse’s suspected assailant — and Marco and Lankford. My response was weak at best.
“There’s still a long way to go in the investigation,” I said. “I would not jump to any conclusions yet.”
“I’m sure they won’t,” Lankford said.
He didn’t have the judgmental smirk that was customary on his face. I read that as an early indication of something changing in Lankford. Maybe it was the weight of knowing he wasn’t in the clear. If the attack on La Cosse was, as I believed, an attempt to end the case by eliminating the defendant, then it had failed. The question now was how badly it had failed.
“Your Honor,” Forsythe said. “In light of these events and the recovery time the victim will certainly need, the state moves for a mistrial. I really don’t see any alternative. We will not be able to guarantee the integrity of the trial or the jury if the case is continued until the defendant reaches a condition in which he can come back to court—if he ever reaches that condition.”
The judge nodded and looked at me.
“Does that make sense to you, Mr. Haller?”
“No, Your Honor, not at all. But I would like my colleague Ms. Aronson to respond to Mr. Forsythe. She is better prepared than me. I spent the night at the hospital with my client.”
The judge nodded to Jennifer, and she responded with a beautiful and unrehearsed argument against mistrial. With every sentence I grew prouder of the fact that I had picked her for my team. Without a doubt she would someday leave me in the dust. But for now she was working for me and with me, and I could not have done better.
Her argument had three concise points, the first being that to declare a mistrial would be prejudicial to the defendant. She cited the cost of mounting the defense and the continuation of Andre La Cosse’s incarceration; the physical toll it would take; and the simple fact that with the prosecution team having seen most of the defense’s case, it would be allowed with a mistrial to retool and be better prepared for the next trial.
“Your Honor, that is not fair in any perception,” she said. “It is prejudicial.”
In my opinion that argument was good enough on its own to win the day. But Jennifer hammered it down with her next two points. She cited the cost to taxpayers that a new trial would certainly entail. And she concluded that the administration of justice was best served in this case by allowing the trial to continue.
These last two points were particularly genius because they hit the judge where she lived. A judgeship was an elected office, and no jurist wants to be called out by an opponent or a newspaper for wasting taxpayer dollars. And the “administration of justice” was a reference to the discretion the judge had in making this decision. Leggoe’s ultimate goal was the administration of justice in this matter and she had to consider whether cutting and running on the case allowed for it or precluded it.
“Ms. Aronson,” the judge said after Jennifer submitted, “your argument is cogent and persuasive, but your client is in a hospital bed in a critical care unit. Surely you’re not suggesting that we bring the jury to him. I think the court is faced with a dilemma here with only one solution.”
This was the only part that was rehearsed. The best way to get what we wanted was to lead the judge to it, not come out of the gate with it.
“No, Judge,” Jennifer said. “We think you should proceed with the case without the defendant present, after admonishing the jury not to consider the defendant’s absence.”
“That’s impossible,” Forsythe blurted out. “We get a conviction and it will be reversed on appeal in five minutes flat. The defendant has the right to face his accusers.”
“It won’t be reversed if the defendant has knowingly waived his right to appear,” Jennifer said.
“Yeah, that’s great,” Forsythe responded sarcastically, “but last I heard, your client is lying unconscious in a bed and we have a jury sitting out there in the box ready to go.”
I reached into my inside jacket pocket and pulled the waiver I had taken to County/USC the night before. I handed it across the desk to the judge.
“That is a signed waiver of appearance, Judge,” I said.
“Wait a minute, wait a minute,” Forsythe said, the first notes of desperation creeping into his voice. “How can that be? The man’s in a coma. I doubt he could sign anything, let alone knowingly sign it.”
The judge handed the waiver to Forsythe. Lankford leaned over from his chair to look at the signature.
“I was at the hospital all night, Judge. He was in and out of consciousness, which is not the same as being in a coma. Mr. Forsythe is throwing around medical terms he doesn’t know the meaning of. That aside, during my client’s periods of consciousness he expressed to me the strong desire to continue the trial in his absence. He doesn’t want to wait. He doesn’t want to have to go through this again.”
Forsythe shook his head.
“Look, Judge, I don’t want to accuse anyone of anything but this is impossible. There’s just no way that this—”
“Your Honor,” I said evenly, as though it didn’t bother me that Forsythe was calling me a liar. “If it will help with your decision, I have this.”
I pulled my cell phone and opened up the photo app. I went to the camera roll and expanded the shot I had taken in my client’s hospital room. It showed Andre in his bed, propped at a forty-five-degree angle, a bed table positioned across his midsection. His right hand was on the table, holding a pen and signing the waiver. The shot was angled down from Andre’s right side. The angle and the swelling around his eyes made it impossible to tell if his eyes were open or closed.
I handed the phone to the judge.
“I had a feeling Mr. Forsythe would object, so I took this quick shot. Something I learned from my process server. There was also a deputy on the room named Evanston. If necessary, we can wake him up and bring him to court to attest to the signature.”
The judge pointedly handed the phone back to me instead of letting Forsythe look.
“The
photo isn’t necessary, Mr. Haller. You’re an officer of the court and I take you at your word.”
“Your Honor?” Forsythe said.
“Yes, Mr. Forsythe?”
“I would like to request a brief delay to allow time for the state to consider and formulate a response to the defense.”
“Mr. Forsythe, this is your motion, and on top of that, you were the one just moments ago reminding the court that there was a jury waiting to proceed.”
“Then, Your Honor, the state requests that the court conduct a thorough examination of the defendant and assure that the waiver Mr. Haller purportedly has was indeed voluntarily and knowingly signed by the defendant.”
I had to head this off before one of Forsythe’s desperate attempts to stop the trial took hold.
“Your Honor, Mr. Forsythe is a desperate man. He obviously will say anything to stop this trial. You have to ask yourself why and I think the answer is that he knows he is going down. We are proving that Mr. La Cosse is innocent in there, and the jury, the gallery, everyone, knows it, including Mr. Forsythe. And so he wants to stop it. He wants a court-sanctioned do-over. Judge, are you really going to allow this? My client is an innocent man and he has been jailed and abused and deprived of everything, including possibly his very life. The administration of justice demands that this trial continue. Right now. Today.”
Forsythe was about to bark back, but the judge held up her hand to stop him. She was set to make the call but was interrupted by a buzzing from the phone on her desk.
“That’s my clerk.”
Meaning that she had to take the call. I winced. I felt that I had her and that she was about to deny the motion for mistrial.
She picked up the phone and listened to something briefly, then hung up.
“James Marco is in the courtroom with an attorney from the DEA,” she said. “He’s ready to testify.”
She let that sink in for a few moments and then continued.
“The motion for a mistrial is denied. Mr. Haller, you will call your next witness in ten minutes.”
“Your Honor, I must strenuously object to this,” Forsythe said.
“Strenuously noted,” Leggoe responded, a harshness in her voice.
“I request that these proceedings be stayed while the state takes the matter up on appeal.”
“Mr. Forsythe, you can file your notice to appeal anytime you want, but there is no stay. We’re back in session in ten minutes.”
She gave Forsythe a moment to come back at her. When he didn’t, she ended the session.
“I think we’re finished here.”
On the way back to the courtroom, the defense team kept a steady separation of fifteen feet behind the state team. I bent over to whisper to Jennifer.
“You hit it out of the park,” I said. “We’re going to win this thing.”
She smiled proudly.
“Legal helped me with the talking points when I was driving him back last night. He’s still sharp as a razor.”
“You’re telling me. He’s still better than ninety percent of the lawyers in this courthouse.”
Up ahead in the hallway I saw Lankford holding the door to the courtroom open and waiting for us after Forsythe had gone through. We held each other’s eyes as I approached, and I took the door gesture as a signal. As an invitation. I touched Jennifer on the elbow and nodded for her to go ahead into the courtroom. I stopped when I got to Lankford. He was a smart guy. He knew the effort to stop the trial and stop me had failed. I gave him an opening because I still needed one side of the conspiracy to cave. And as often as I had crossed swords with Lankford, I wanted Marco to go down even more.
“I’ve got something you should take a look at,” I said.
“Not interested,” he said. “Keep moving, asshole.”
But there was no conviction in it. It was just his starting point in a negotiation.
“I think this is something you’ll be very interested in.”
He shrugged. He needed more in order to make the decision.
“And if you’re not interested, your pal Marco will be.”
Lankford nodded.
I went through the door and entered the courtroom. I saw Forsythe at the prosecution table. He had pulled out his phone and was making a call. I assumed it was to a supervisor or to somebody in the appellate unit. I didn’t much care which.
Lankford passed me and went to his seat at the rail. I went to the defense table and picked up the iPad I had borrowed from Lorna. I engaged the screen and cued up the video from the Sterghos house, then stepped over to the railing and put the device down on the empty seat next to Lankford as I brought my right foot up to tie my shoe. I whispered without looking at Lankford.
“Watch it to the end.”
As I stood up, I scanned the crowded courtroom. Word that Department 120 was where the action was had already spread through the courthouse. In addition to Moya’s men, who were in their usual spot, there were at least six members of the media in the first two rows, a variety of suited men I identified as fellow lawyers, and the highest concentration I’d seen in a long time of professional trial watchers — the retired, unemployed, and lonely who wander courthouses every day in search of human drama, pathos, and anguish. I wasn’t sure whether the draw was Marco’s appearance or the fact that the defendant had been nearly stabbed to death the evening before in the CCB’s basement, but the message had been transmitted and the people had come.
I spotted Marco four rows back. He sat next to a man in a suit who I assumed was his lawyer. Marco hadn’t bothered to dress for the occasion. He was wearing a black golf shirt and jeans again, the shirt tucked in so the gun holstered on his right hip was fully on display. The gunslinger look.
I decided that I needed to try to do something about that.
I looked down and saw that Lankford had already viewed the silent video and returned it to the empty seat. He sat there in what appeared to be a daze, perhaps understanding that his life was unalterably going to change before the end of this day. I brought my other shoe up onto the chair to tie. I bent down again, my eyes on Marco in the gallery as I whispered to Lankford.
“I want Marco, not you.”
41
The judge took the bench as promised and briefly eyed the number of people in the gallery.
“Are we ready for the jury?” she asked.
I stood to address the court.
“Your Honor, before we call the jury, I would like to address a couple of matters that have just now come up.”
“What is it, Mr. Haller?”
She said it with exasperation clearly in her voice.
“Well, Agent Marco is here presumably to testify as a witness called by the defense. I would like to request that I be allowed to treat him as a hostile witness and I would also ask that the court direct Agent Marco to remove the firearm he is wearing openly on his belt.”
“Let’s take these one at a time, Mr. Haller. First, you have called Agent Marco as a defense witness and he has so far not answered a single question. On what basis should you be allowed to treat your own witness as a hostile witness?”
Classifying a witness as hostile would allow me more freedom in questioning Marco. I could ask leading questions needing only a yes or no response.
“Your Honor, Agent Marco has sought to avoid testifying at this trial. He has even brought his lawyer with him today. Additionally, the one and only time I have met Agent Marco, he threatened me. I think that makes him, well, hostile.”
Forsythe stood to respond, as did Marco’s attorney, but the judge waved them off.
“Your request is denied. Let’s start the testimony and see how it goes. Now, what troubles you about Agent Marco’s sidearm?”
I asked if she could direct Marco to stand in the gallery so that she could see his gun. She agreed and ordered him to stand.
“Your Honor,” I said, “I believe that his wearing his weapon in such an open way is threatening and prejudicial.”
“He is a law enforcement officer,” Leggoe said. “And that will be established, I’m assuming, when he begins his testimony.”
“Yes, Judge, but he’s going to walk by the jury on his way to the stand looking like he’s Wyatt Earp. This is a courtroom, Judge, not the Old West.”
The judge thought for a moment and then shook her head.
“I’m unconvinced, Mr. Haller. I’m denying that request as well.”
I had hoped the judge would read between the lines and understand what I was seeking. I was going to push Marco out of his comfort zone and, depending on how things went, possibly even accuse him of murder. You never know how people are going to react, even law enforcement officers. I would have been far more comfortable knowing Marco was unarmed.
“Anything else, Mr. Haller? The jury has been most patient waiting on us.”
“Yes, Judge, one more thing. This morning I will call Agent Marco, followed by Investigator Lankford. I would ask that you instruct Mr. Lankford to remain in the courtroom so that I can ensure his testimony.”
“I will do no such thing. Mr. Lankford is expected to be where he should be, but I will not restrict his movements in the meantime. Let’s bring the jury in now.”
I glanced back at Lankford after the ruling and saw his cold-eyed stare trained fully on me.
The jury was finally seated, and the judge took five minutes to explain to them that the defendant would likely not be present for the rest of the trial. She said this was due to a hospitalization that had nothing to do with the trial or the case at hand. She admonished them not to let the defendant’s absence affect their deliberations or view of the trial in any way.
I then took my place at the lectern and called James Marco to the stand. The federal agent stood in the gallery and stepped forward with an undeniable confidence and ease in his stride.
After the preliminaries that identified him as a DEA agent and member of the ICE team, I quickly got down to the script I had worked out in my head during the sleepless night before.
“Agent Marco, please tell the jury how you knew the victim in this case, Gloria Dayton.”
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